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ORDER
13
16
17 INTRODUCTION
18 The government applied for, and the court issued, a search warrant under 18 U.S.C. 2703(a),
19 the Stored Communications Act (SCA), directing Google to produce stored content related to
20 certain email accounts.1 Google moved to quash on two grounds: (1) the government cannot
21 compel Google to disclose content that it stores outside the United States; and (2) the search
22 warrant asks for content that does not exist in the locations that the government specified (such as
23 Dasher Policy or GA Plus).2 The court addressed the second issue in an earlier order; if the
24 parties disagree about whether there is responsive data (and they likely do not), they will submit
25
26
1
27 Warrant ECF No. 4-1. Record citations refer to material in the Electronic Case File (ECF);
pinpoint citations are to the ECF-generated page numbers at the top of documents.
2
28 Motion to Quash ECF No. 3 at 3.
1 any discovery disputes in a joint letter brief.3 The remaining dispute is whether Google must
3 Google has a distributed system where algorithms determine how it sends and stores data in
4 packets or component parts in aid of overall network efficiency. In this case, the result is that
5 Google has content that is responsive to the search warrant and is stored wholly outside of the
6 United States. The legal issue is whether 2703(a) reaches content stored outside of the United
7 States. Citing the Second Circuit, Google contends that the government cannot compel it to
8 disclose the extraterritorial content.4 See In the Matter of a Warrant to Search a Certain E-Mail
9 Account Controlled & Maintained by Microsoft Corp., 829 F.3d 197 (2d Cir. 2016), rehg denied
10 en banc, No. 14-2985, 2017 WL 362765 (2d Cir. Jan. 24, 2017). The government counters that the
12 The SCA regulates disclosure of data in a service providers possession. The service provider
Northern District of California
United States District Court
13 Google is in the district and is subject to the courts jurisdiction; the warrant is directed to it
14 in the only place where it can access and deliver the information that the government seeks. This
15 disclosure is a domestic application of the SCA. The court thus orders Google to produce all
16 content responsive to the search warrant that is retrievable from the United States, regardless of
18
19 STATEMENT
20 1. Facts
21 Google headquartered in the United States and incorporated in Delaware has its
22 principal place of business in California.6 It offers its users different online and communication
23 services, including email.7 It stores its data in different locations, some in the United States and
24
3
25 Order ECF No. 31.
4
26 Motion to Quash ECF No. 3 at 5.
5
Opposition ECF No. 15 at 12.
27 6
Stipulation of Facts (SF) ECF No. 37, 1
7
28 Id.
1 some outside the United States.8 User files may be broken into component parts, and different
2 parts of a single file may be stored in different locations (including different countries).9 Google
3 operates what the parties term a state-of-the-art intelligent network.10 [T]o optimize
4 performance, reliability, and other efficiencies, the network moves data including data
5 responsive to the search warrant automatically from one location to another (including different
6 countries).11 The datas location can change during the time period from when legal process (such
8 Google has a legal team in the United States the Legal Investigations Support team that
9 produces information in response to search warrants and other requests for legal process.13 All
10 Google personnel on the team are in the United States, and only Google personnel on the team are
12 The search warrant signed on June 30, 2016 authorized production of information from
Northern District of California
United States District Court
13 specific Google email accounts regarding subscriber information, evidence of specified crimes,
14 and information about the account holders true identities, locations, and assets.15 Google
15 produced the following information. One, for all Google accounts (except for one that did not
16 exist), Google produced records confirmed to be stored in the United States, including
17 subscriber information, Google Contacts, files, location history, search history, Maps, and Photos
18 metadata.16 Two, for all but two accounts, Google produced email content and header
19 information but did not produce any attachments to those emails because they were not
20
21
8
22 Id. 2.
9
23 Id. 3.
10
Id. 4.
24 11
Id.
12
25 Id.
13
26 Id. 5.
14
Id.
27 15
Warrant ECF No. 4-1 at 38.
16
28 SF 7.
1 confirmed to be stored in the United States.17 Three, for the remaining two accounts, Google did
2 not produce any Gmail content, non-content[,] or attachments because all such information for
3 those accounts was stored exclusively outside of the United States.18 As of November 18, 2016,
4 Google asserts that it had disclosed all responsive information (as described in this paragraph)
5 that Google had confirmed at the time to be stored in the United States.19
7 2. Procedural History
8 Google moved to quash or amend the search warrant; the government opposed the motion.20
9 The court held a hearing on February 21, 2017,21 and directed (1) the parties to submit a joint
10 stipulation of undisputed facts relevant to the extraterritoriality analysis and (2) Google to provide
11 information about its current ability to identify whether information is stored in the United States,
12 given its representation at the hearing that it was finalizing a tool to identify whether or not
Northern District of California
United States District Court
13 content was stored in the United States.22 The parties provided additional information on March
15
16 ANALYSIS
17 The warrant here issued under 18 U.S.C. 2703(a), which is part of the Stored
18 Communications Act (SCA). Section 2703 sets forth the legal processes that the government
19 must use to require service providers such as Google to produce customer communications and
20 records. For example, only an administrative subpoena is needed for basic subscriber information
21 and transactional information. 18 U.S.C. 2703(c)(2). The government can obtain a court order
22
23
17
Id.
24 18
Id.
19
25 Id. 8.
20
26 ECF Nos. 3, 15, and 16.
21
Minute Order ECF No. 28; Reporters Transcript (RT) ECF No. 35.
27 22
Order ECF No. 31 at 23.
23
28 ECF Nos. 37, 38, 39, and 41.
1 without notice to the customer for other non-content records if it offers specific and articulable
2 facts showing that there are reasonable grounds that the records are relevant and material to an
3 ongoing criminal investigation. Id. 2703(d). Other user content can be obtained by subpoena or
4 a 2703(d) order with notice to the subscriber or customer. Id. 2703(b)(1)(A). To obtain stored
5 communications, the government must obtain a warrant issued using the procedures described in
6 the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State
7 warrant procedures) by a court of competent jurisdiction. Id. 2703(a). The SCA defines a court
8 of competent jurisdiction as (1) a U.S. district or appeals court that has jurisdiction over an
9 offense being investigated, is in the service providers district, or is acting on a request for foreign
10 assistance under 18 U.S.C. 3512, or (2) a state court of general criminal jurisdiction authorized
11 by state law to issue search warrants. Id. 2711(3). It is otherwise silent about its territorial reach
13 The procedures for obtaining a search warrant are in Federal Rule of Criminal Procedure 41
14 titled Search and Seizure. Rule 41s venue provision defines its territorial reach. Fed. R. Crim.
15 P. 41(b). Magistrate judges may issue warrants for persons or property in the district and
16 sometimes outside the district (but still in a federal district) in specified contexts such as (1) the
17 persons and property were in the district when the warrant issued, (2) investigations involving
18 domestic or international terrorism, and (3) tracking devices installed in the district. Fed. R. Crim.
19 P. 41(b)(1)(4). Rule 41(b)(5) allows the issuance of a warrant for property outside the jurisdiction
20 of any state or district but in (1) a United States territory, possession, or commonwealth, (2) a
21 United States diplomatic or consular mission in a foreign state, or (3) a residence owned or
22 leased by the United States and used by United States personnel assigned to the United States
24 The SCA does not specify whether it or its warrant provisions apply outside the United States.
25 The court thus presumes that they do not under the canon of statutory construction known as the
26 presumption against extraterritoriality. RJR Nabisco, Inc. v. European Cmty., 136 S. Ct. 2090,
27 2100 (2016); Morrison v. Natl Australia Bank, Ltd., 561 U.S. 247, 255 (2010). Absent clearly
28
1 expressed congressional intent to the contrary, federal laws will be construed to have only
2 domestic application. RJR Nabisco, 136 S. Ct. at 2100 (citing Morrison, 561 U.S. at 255).
3 There are several reasons for the presumption. Id. Most notably, it serves to avoid the
4 international discord that can result when U.S. law is applied to conduct in foreign countries. Id.
5 [I]t also reflects the more prosaic commonsense notion that Congress generally legislates with
6 domestic concerns in mind. Id. (quotation omitted). We therefore apply the presumption across
7 the board, regardless of whether there is a risk of conflict between the American statute and a
9 Three recent Supreme Court decisions establish a two-part framework to analyze whether a
10 statute applies extraterritorially. RJR Nabisco, 136 S. Ct at 2101; Kiobel v. Royal Dutch Petroleum
11 Co., 133 S. Ct. 1659, 166569 (2013); Morrison, 561 U.S. at 26170. At the first step, we ask
12 whether the presumption against extraterritoriality has been rebuttedthat is, whether the statute
Northern District of California
United States District Court
13 gives a clear, affirmative indication that it applies extraterritorially. RJR Nabisco, 136 S. Ct at
14 2101. We must ask this question regardless of whether the statute in question regulates conduct,
15 affords relief, or merely confers jurisdiction. Id. If the statute is not extraterritorial, then at the
16 second step we determine whether the case involves a domestic application of the statute, and we
17 do this by looking to the statutes focus. Id. If the conduct relevant to the statutes focus
18 occurred in the United States, then the case involves a permissible domestic application even if
19 other conduct occurred abroad; but if the conduct relevant to the focus occurred in a foreign
20 country, then the case involves an impermissible extraterritorial application regardless of any other
22 The parties do not dispute that at step one, section 2703 and its warrant provisions do not
23 contemplate or permit extraterritorial application.24 The inquiry thus moves to step two: whether
24 the case involves a domestic application of the statute, which in turn depends on whether the
25 conduct relevant to the SCAs focus took place in or outside the United States. Id.
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28 United States Opposition ECF No. 15 at 18; Googles Reply ECF No. 16 at 79.
1 Only the Second Circuit has considered the extraterritorial application of the SCA. In
2 Microsoft, it held that the SCA did not apply outside the United States and Microsoft need not
3 disclose user content stored in Ireland. Microsoft, 829 F.3d at 20102, 21621. Like Google,
4 Microsoft provides web-based email. Id. at 202. It stores the contents of emails and other non-
5 content information on a network of servers. Id. Its service offerings are segmented into
6 regions. Id. Most customer data (such as email, calendar entries, and documents) is stored in data
7 centers in the region where the customer is located. Id. The customer self-reports the customers
8 location when subscribing to the Microsoft service; Microsoft does not verify user identity or
9 location. Id. at 20203. Based on the users country code, Microsoft transfers data associated with
10 the user to the server associated with the country code (for example, the Dublin datacenter), and
11 (at the time) deleted most data sets in the United States. Id. at 203. At some offices in the United
12 States, Microsoft could collect account data stored on its international servers. Id.
Northern District of California
United States District Court
13 The Second Circuit denied the government access to the Ireland content. It determined that the
14 statutes focus was user privacy, rejected the governments contrary argument that the SCA
15 focused on disclosure of content, and concluded that requiring Microsoft to disclose content
16 stored in Ireland would be an unlawful extraterritorial application of the act. Microsoft, 829 F.3d at
17 21621. The government sought rehearing en banc, which the Second Circuit denied in a four-
18 four split decision. See 2017 WL 362765 (2nd Cir. Jan. 24, 2017). The court follows as persuasive
19 the reasoning of the dissenters from the denial of rehearing en banc and concludes that the
21 application of the SCA. Id. at *518 (four dissenters Circuit Judges Jacobs, Cabranes, Raggi,
22 and Droney each wrote a dissent; each dissenter joined the others dissents). The statutes
23 application here is lawful, and Google thus must provide all responsive information.
24 The parties stipulate that the only place to access the information is in the United States.25
25 Even if the SCAs focus is privacy, the warrant requirement with its attendant requirement of
26 probable cause protects privacy. Id. at *6 (Jacobs, J., dissenting). Moreover, an SCA warrant is
27
25
28 SF 5.
1 not a search warrant in the classic sense: the government does not search a location or seize
2 evidence. Instead, the conduct relevant to the focus and what the SCA seeks to regulate is
3 disclosure of the data in the service providers possession. Id. at *10 (Cabranes, J., dissenting).
4 The service provider Google is in the district and is subject to the courts jurisdiction; the
5 warrant is directed to it in the only place where it can access and deliver the information that the
6 government seeks. [I]f statutory and constitutional standards are met, it should not matter where
7 a service provider chooses to store the 1s and 0s. Id. at *7 (Jacobs, J., dissenting). That
8 conclusion is especially true here. Unlike Microsoft, where storage of information was tethered to
9 a users reported location, 829 F.3d at 203, there is no storage decision here. The process of
11 In sum, the disclosure is a domestic application of the SCA. Other courts have reached similar
12 conclusions after a similar analysis of the Microsoft decision. See, e.g., In re: Information
Northern District of California
United States District Court
13 associated with one Yahoo email address that is stored at premises controlled by Yahoo, No. 2:17-
14 mj-1234-WED, ECF No. 1 at 68 (E.D. Wis. Feb. 21, 2017);26 In re Search Warrant to Google,
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24 The memorandum and order addressed two miscellaneous cases: In re Information associated with
one Yahoo email address that is stored at premises controlled by Yahoo, No. 2:17-mj-1234-WED; and
25 In re: Two email accounts stored at Google, Inc., No. 2:17-mj-1235-WED. In the Google case, Google
objected to the magistrate judges order, and the magistrate judge directed Google to file a motion to
26 quash. See No. 17-mj-1235, ECF Nos. 3 & 4. That motion is still pending. The court was unable to
access through PACER the sealed docket in the Yahoo case.
27
27 The memorandum of decision addressed two cases: In re Search Warrant No. 16-960-M-01 to
Google, No. 2:16-mj-960-JS-1; and In re Search Warrant No. 16-1061-M to Google, No. 2:16-mj-
28 1061-JS-1. Google objected to the magistrate judges decision. That objection is still pending.